A P KRISHNAMURTHY Vs. SOUTHERN RLY GEN MANAGER

JUDGEMENT

(1.) The petitioner was working as a Fireman C in the Mysore Division of the Southern Railway. A disciplinary enquiry was held against him on the allegation that he had committed certain misconduct. By order dated 19-3-1975 Ex 'G', the Divisional Mechanical Engineer after holding the petitioner guilty of the charge levelled against him imposed the penalty of reducing the petitioner to the post of Engine Cleaner on a pay of Rs. 199 in the scale of 196-232 from 1-4-1975 for a period of two years. On appeal the penalty imposed on the petitioner was modified and a penalty of reduction of the pay to minimum of Rs. 200 in the time scale of Rs. 200-250 of the cadre of Fireman C was imposed for a period of two years with effect from 1-9-1975 with a further condition that the period of reduction in the time-scale will not have the effect of postponing the future increments on restoration. Thereafter, the Chief Operating Superintendent issued a notice as per Ex-K dated 30-1-1976 requiring the petitioner to show cause why the penalty imposed on him should not be enhanced to one of removal from service. After considering the cause shown by the petitioner, the said authority made an order as per .Ex-M dated 23-11-1976, reducing the petitioner permanently to the post of Engine Cleaner instead of imposing on him the proposed penalty of removal from service. The order further directs that the petitioner is reduced permanently to the post of Engine Cleaner on a pay of Rs. 199 in the scale of Rs. 196-232. The said order has been further affirmed by the General Manager by the order communicated as per Ex-O dated 9th May 1977. It is in this background that the petitioner has challenged the orders Exs-M and O referred to above.

(2.) Sri Narayanaswamy, learned counsel for the petitioner, contended that under the Railway Servants (Discipline and Appeal) Rules 1968, the authorities could not impose the penalty of reverting the petitioner to the post of Cleaner on a permanent basis. He invited my attention to Rule 6 of the Rules which prescribes several penalties that may be imposed and contended that the said Rules do not authorise the disciplinary authority to impose a penalty of reducing or reverting to the lower post which has the effect of keeping such a person permanently in that post without any further scope for promotion during the rest of his career. The -most appropriate clause of Rule 6 which deserves examination in this behalf is clause (vi), which reads as follows :

(3.) The order states that the petitioner has been reduced permanently to the post of Engine Cleaner. The clear effect of this order is that the reduction of the petitioner from the post of Fireman-C to the post of Engine Cleaner is not for any specified period. If the order of reduction was for a specified period, the petitioner would automatically get the post of Fireman-C on the expiry of the specified period of reversion. When the reduction or reversion is for a specified period, the person automatically goes to the post from which he is reverted or reduced without his being required to earn promotion to that post once again. In the impugned order Ex-M, the Chief Operating Superintendent has in order to emphasise that the petitioner has forfeited the promotion which he had earlier earned to the post of Fireman C, has stated that the petitioner is reduced to the post of Cleaner permanently. The language employed is intended to convey that on the imposition of the penalty the petitioner must be regarded as a person belonging legitimately to the lower cadre of cleaners. In other words, he has forfeited the earlier promotion which he had earned to the cadre of Fireman-C. The language employed conveys that the petitioner having been reduced to the post of Engine Cleaner on a permanent basis, he shall have to work out his rights for further promotions like any other engine cleaner. It is no doubt true the Chief Operating Superintendent intended to enhance the penalty. The penalty gets enhanced when the reduction is not for a specified period, but the reduction is on a permanent basis. If the reduction is for a period and not permanent, the promotion earned by the petitioner would be denied to him only for the specified period and he would not be required to earn promotion once again after the expiry of the specified period of reduction. But if the reduction to the lower post is permanent, as in the present case, the petitioner will have to earn promotion once again to the cadre of Fireman-C on the basis of his performance in that cadre and having regard to his legitimate rank in seniority in that cadre. It is because the petitioner has lost the benefit of earlier promotion altogether and is required to earn promotion once again that the penalty imposed reducing to the post of Engine Cleaner permanently becomes a more onerous penalty than the earlier penalty of reduction only for a specified period. I am not unmindful of the possibility of the petitioner getting promotion very early, but then such promotion is one which he would earn on the basis of his performance in the cadre of Engine Cleaners after his reduction to that post and having regard to his legitimate seniority. It is on account of his satisfactory performance of his duties and his legitimate seniority that he may stand a chance of earning promotion once again. The mere possibility of such promotion being earned even before expiry of the period of two years, cannot come in the way of construing the order as being more onerous in character for the reasons" already stated. It is no doubt true that even if the word permanently' was not used and the penalty imposed was only one of reduction to the post of Engine Cleaner, the effect would have been the same. But it appears that the Chief Operating Superintendent has added emphasis by using the word 'permanently' in order to indicate very clearly that the petitioner has to earn his promotion once again and that he has forfeited the promotion already earned by him to the cadre of Fireman-C. Having regard to the language employed and the circumstances of the case, I have no hesitation in taking the view that the impugned orders Exs. 'M' and 'O' which have the effect of permanently reducing the petitioner to the post of Engine Cleaner do not have the effect of denying the petitioner of his further chance of promotion to the cadre of Fireman C having regard to his performance and seniority in the cadre of Engine Cleaners. If after the date of reduction of the petitioner to the post of Enhine Cleaner, any vacancy arises in the Fireman C cadre, the petitioner's case for promotion to that cadre has to be considered in accordance with the relevant rules, his seniority and ranking in that cadre and his record of service from the date of his reversion to the cadre of Engine Cleaner. If on such consideration, the promoting authority forms the opinion that the petitioner is fit and suitable and deserves to be promoted, the impugned orders Exts. M and O cannot and shall not come in the way of the said authority in according promotion to the petitioner. In other words, the petitioner has that right of being considered for promotion having regard to his performance and his legitimate seniority in the cadre of Engine Cleaner. In view of the construction of the order enhancing the penalty, it is unnecessary to consider the rival contentions on the construction of Clause (vi) of Rule 6 of Railway Servants (Discipline &. Appeal) Rules, 1968.